WASHINGTON — Special counsel Jack Smith is evaluating how to wind down the two federal cases against Donald Trump before he takes office in light of longstanding Justice Department policy that says sitting presidents cannot be prosecuted, a person familiar with the matter said Wednesday.
Smith charged Trump last year with plotting to overturn the results of the 2020 presidential election and illegally hoarding classified documents at his Mar-a-Lago estate. But Trump’s election defeat of Kamala Harris means that the Justice Department believes he can no longer face prosecution in accordance with decades-old department legal opinions meant to shield presidents from criminal charges while in office.
The person familiar with Smith’s plans was not authorized to discuss the matter by name and spoke on condition of anonymity to The Associated Press.
By moving to end the cases before the inauguration in January, Smith and the Justice Department would avert a potential showdown with Trump. The president-elect said as recently as last month that he would fire Smith, who was appointed in November 2022 by Attorney General Merrick Garland, “within two seconds” of taking office.
NBC News first reported Smith’s plans.
Smith’s two cases charge Trump in a conspiracy to undo the election results in the run-up to the Capitol riot, and with retaining top secret records at his Mar-a-Lago estate in Florida and obstructing FBI efforts to recover them.
The classified documents case has been stalled since July when a Trump-appointed judge, Aileen Cannon, dismissed it on grounds that Smith was illegally appointed. Smith has appealed to the Atlanta-based 11th U.S. Circuit Court of Appeals, where the request is pending.
In the 2020 election interference case, Trump was scheduled to stand trial in March in Washington, where more than 1,000 of his supporters have been convicted of charges for their roles in the Capitol riot. But the case was halted as Trump pursued his sweeping claims of immunity from prosecution that ultimately landed before the U.S. Supreme Court.
Trump could be emboldened by the Supreme Court’s ruling in July, which granted former presidents expansive immunity from prosecution for acts taken in the White House and explicitly put off-limits any alleged conduct involving Trump’s discussions with the Justice Department. That included his efforts use the Justice Department to conduct sham election fraud investigations as part of his bid to stay in power.
The conservative-majority Supreme Court sent the case back to U.S. District Judge Tanya Chutkan to determine which of the other allegations in the indictment, if any, could move forward to trial.
In response, Smith’s team last month filed a 165-page brief laying out new evidence to persuade the judge that the actions alleged in the indictment were taken in Trump’s private capacity as a candidate — not as commander-in-chief — and therefore can remain part of the case. Trump’s lawyers are scheduled to file their response later this month. Whatever Chutkan rules is expected to be appealed again to the Supreme Court, meaning a possible trial would be likely a year or more away.
